The Court of Appeals affirmed the trial court’s ruling that appellees lacked sufficient contacts with Texas in their individual capacities to support the exercise of personal jurisdiction over them. Appellants argued that appellees were subject to specific jurisdiction in Texas because the tortious interference and related conspiracy claims against appellees directly relate to and arise from appellees’ purposeful contacts with Texas. According to the Court, any alleged jurisdictional contacts in furtherance of tortious interference made by appellees in their capacity as corporate officers are subject to the fiduciary shield doctrine and do not constitute contacts with Texas in their individual capacities because there was no proof such contacts were motivated solely by appelees’ personal interest. Accordingly, the Court found appellees’ evidence that none of their contacts with Texas were in their individual capacities, combined with the fact that appellees could not be liable in their individual capacities for their conduct on behalf of out of state entities, negated appellant’s jurisdictional allegations.
Author Archives: Melissa Case
The Court of Appeals has once again denied a permissive interlocutory appeal. Respondents sued petitioners for injuries they sustained after a bus accident in Mexico. The bus ticket stated that the passenger accepted “the validity and application of the authority and jurisdiction of the applicable Mexican Law and Regulations…” The trial court denied petitioner’s motion to apply the laws of Mexico, ruling instead that Texas law applied. Petitioners appealed. The Court found that although petitioners claim they will have to do additional discovery without a decision from the Court of Appeals on the choice of law issue, petitioners failed to show the appeal would materially advance the ultimate termination of the litigation.
After Brown missed at least twenty-five mortgage payments, the Bank sent Brown notice of default and he failed to cure. The Bank sought a declaratory judgment authorizing a non-judicial foreclosure sale of the property, and obtained summary judgment. Brown appealed, and the Court affirmed. First, the Court found that Brown’s attacks on the admissibility or competency of the Bank’s summary judgment evidence were largely inadequately briefed. Second, the Court rejected Brown’s argument that the trial judge erred by denying Brown a continuance of the summary judgment hearing because (1) Brown’s motion for continuance did not mention the summary-judgment hearing, (2) Brown failed to preserve error because there was no ruling on his motion, and (3) Brown failed to submit evidence demonstrating the materiality of the purportedly previously unavailable summary-judgment evidence. Finally, the Court held that Brown failed to show reversible error due to the clerk’s late filing of the record on appeal.
No Governmental Immunity For Charter Schools Under Texas Whistleblower Protection Act
November 27, 2013Kimberly Ball-Lowder brought suit against Pegasus for wrongful discharge under the Texas Whistleblower Protection Act. Pegasus filed a plea to the jurisdiction, asserting that Ball-Lowder’s claims must be dismissed because the Whistleblower Protection Act is not applicable to a Texas open-enrollment charter school. The Court held that the Act applies to an open-enrollment charter school, and affirmed the trial court’s order denying the plea to the jurisdiction. Government immunity is waived for a “local government entity” respecting claims under the Act. The Court concluded that the Whistleblower Protection Act’s definition of “local government entity” must be interpreted to include an open-enrollment charter school to be consistent with the Texas Supreme Court’s decision in LTTS Charter School, Inc. v. C2 Construction III, 342 S.W.3d 73 (Tex. 2011).
The court of appeals conditionally granted mandamus relief after the trial court issued a TRO preventing relators from terminating Greg Marquez’s employment. The TRO stated that Marquez’s injury was irreparably because the loss of his job would result in the loss of health insurance benefits for him and his family, and that he would be unable to obtain medical treatment. The Court of Appeals held that Marquez’s injury was not irreparable because the cost of medical treatment is compensable through monetary damages. Consequently, the trial court abused its discretion by granting the TRO.
In re Southern Foods Group, LLC
The Court subsequently withdrew its opinion and vacated its order in In re Southern Foods Groups. The Court found that because the trial court had orally denied the real party in interest’s request for a temporary injunction, the issues relating to the TRO were moot.
Among other claims, the Olmsteads sued the Goldmans for breach of contract to purchase residential real estate. The trial court rendered judgment in favor of the Olmsteads and awarded them damages and attorney fees; the Goldmans appealed. The Court of Appeals partially reversed, holding that the Olmsteads take nothing on their claims and remanded the issue of attorneys’ fees. The Court found that the trial court erred by awarding the Olmsteads damages based on the carrying costs of the house after the Goldmans breached the contract until the house was sold. The proper measure of damages was the difference between the contract price and the market value of the house on the date the Goldmans breached the contract, which was zero. The court reasoned that non-breaching sellers should not be awarded the post breach costs of ownership because it could “incent the seller to hold the property indefinitely while waiting for market conditions to change, or for a purchaser willing to pay a specific price.”
In 1977, Bullough married Hundley because she told him she was pregnant with his child – Dale Jr. – who was born the following year. In 2004, the parties divorced after a two-day trial, and the trial court made a division of the parties’ marital estate. More than six years later, Bullough learned that Dale Jr. was not his biological son through DNA testing. A few months later, the Will Slip 2011 Trust was created for the benefit of Bullough and the children of Dale Jr. Bullough then assigned his claims against Hundley to the Trust, and seventeen days later, the Trust filed suit.
The essence of the Trust’s claims was that Hundley deceived Bullough into marrying her by lying about the paternity of Dale Jr., and continued to lie throughout the marriage. As damages, the Trust sought the value of the support Bullough provided Hundley during more than 20 years of marriage, the value of the assets Hundley received as part of the divorce, and the parties’ art collection. The trial court found that the 2004 final divorce decree barred the Trust’s claims and granted Hundley’s motion to dismiss and motion for summary judgment. The Court of Appeals affirmed, holding that because the Trust’s claims arise out of facts that could have been litigated in the divorce, they were barred by res judicata.
The parties entered an operating agreement, which contained a forum selection clause that required them to submit to jurisdiction in Oregon. CKH initiated litigation related to the operating agreement in Texas. The trial court granted appellees motion to dismiss on venue finding that CHK agreed to venue in Oregon, and CKH appealed.
The Court of Appeals affirmed for three reasons. First, the Court found that appellees did not waive the court’s jurisdiction to rule on its motion to dismiss based on a forum selection clause simply because the trial court denied their special appearance. Second, the Court held that whether CKH’s claims are subject to arbitration is irrelevant to the forum selection clause. The operating agreement requires parties to submit to jurisdiction in Oregon “provided such claim is not required to be arbitrated.” CKH initiated a lawsuit rather than filing arbitration; the Court found such “action” to be controlled by the forum selection clause. Further, the parties agreed to arbitration in Oregon, which makes it clear that the parties envisioned all claims–whether brought before a court or an arbitration panel–be filed in Oregon. Third, the Court held that a non-signatory was entitled to rely on and enforce the forum selection clause because the claims against the non-signatory are substantially interdependent on the claims against the signatory.
In 2008, Metroplex entered a mail processing agreement with Donnelley’s predecessor in interest Browne & Co under which Metroplex would sort mail for Browne’s Dallas facility customers. In 2009, Metroplex ceased its operations, and Browne filed suit against Metroplex seeking the return of money it had on deposit. The jury found in favor of Browne, and Metroplex appealed. The Court of Appeals affirmed the jury’s finding of breach of contract against Metroplex and its award of attorney’s fees. The Court, however, found no evidence to support piercing Metroplex’s corporate veil to hold its president personally liable. Accordingly, the Court reversed the trial court’s judgment to the extent it orders recovery against the president individually, and affirmed the trial court’s judgment in all other respects.
In 2004, Crutcher filed a lawsuit against the Dallas Independent School District (“DISD”) alleging discrimination and retaliation. The 2004 lawsuit was settled out of court. In the summer of 2009, Crutcher interviewed for a position with the DISD, but did not get the job. Following this adverse employment decision, Crutcher sued DISD. The trial court granted summary judgment in favor of DISD, and Crutcher appealed. The Court of Appeals held that Crutcher failed to establish a causal connection between Crutcher’s filing of the 2004 lawsuit and the adverse employment decision so as to establish a prima facie case of retaliation. The Court further held that DISD provided substantial evidence to show legitimate, nondiscriminatory reasons for its decision to not hire Crutcher.
Crutcher v. Dallas Indep.Sch. Dist., No. 05-11-01112-CV
PDBI and Varel entered into an agreement in which PDBI agreed to act as Varel’s authorized sales representative by providing “sales and technical service” to certain customers. Pursuant to this contract, PDBI met with MMS several times to pitch Varel’s products and provide product price sheets, product requirements, and technical services. Varel then cancelled its agreement with PDBI, and informed PDBI that any sales to MMS would be made directly by Varel. MMS subsequently began buying products directly from Varel. PDBI sued Varel, alleging that PDBI procured MMS as a buyer of Varel products, provided “sales and technical services” to MMS, and was “entitled to commission on sales” to MMS. The Court of Appeals reversed the trial court’s grant of summary judgment in favor of Varel. The Court reasoned that PDBI’s evidence raises a fact issue whether it rendered sales and technical service to MMS under the terms of its contract with Varel.
PetroDrillBits Int’l v. Varel Int’l Indus., No. 05-12-00406
The Weavers hired attorney Holliday to pursue claims relating to a car accident. The Weavers later sued Holliday for breach of fiduciary duty, professional negligence, fraud, and violation of the DTPA, alleging that Holliday settled an insurance claim without the Weavers’ consent and converted the money for personal use. The trial court found in favor of the Weavers on all four claims, and the Weavers elected to recover on the DTPA claim. The Court of Appeals reversed the trial court’s judgment on the DTPA claim, and rendered judgment for the Weavers on the breach of fiduciary duty claim. The Court of Appeals noted that there was “no evidence that [Holliday’s] acceptance of the settlement payments…or his attorney’s fees, constituted a pecuniary loss to the Weavers that was caused by Holliday’s DTPA violations as opposed to the other claimed wrongful conduct.” Thus, the evidence was legally insufficient to support the award of damages under the DTPA because there was no evidence that the DTPA violations were a producing cause of the Weavers’ claimed pecuniary loss.
Holliday v. Weaver, No. 05-10-01614-CV
IBP leased a restaurant space to Pizza Associates. Graman executed the lease for Pizza Associates as its president, and executed a written guaranty, guaranteeing the payment and performance of the lease. IBP terminated the lease after Pizza Associates failed to comply with its terms. IBP sued Pizza Associates for breach of the lease, and sued Graman pursuant to the guaranty. The trial court granted IBP’s motion for summary judgment, to which Graman had filed a response but Pizza Associates did not. Graman appealed.
The court of appeals held that Graman did not raise a viable challenge to the trial court’s summary judgment against them because their arguments did not address the obligation to pay under the guaranty. Instead, Graman raised issues related to the lease, but Pizza Associates’ liability was settled. The court of appeals determined that Graman cannot avoid liability under the guaranty by now questioning the settled underlying liability related to the lease. The court of appeals also rejected Graman’s argument that IBP was required to segregate its fees between the breach of lease suit and the breach of guaranty claim. The court of appeals affirmed the trial court’s judgment.
Graman v. IBP Retail No. 5, L.P., No. 05-12-00565-CV
Okunfulure hired Ortiz to build a masonry wall along the front of his house. Ortiz sued Okunfulure, claiming he was not fully paid according to the parties’ oral agreement. Okunfulure counterclaimed, alleging Ortiz’s performance was deficient. The trial court found in favor of Ortiz and dismissed Okunfulure’s counterclaim with prejudice. Okunfulure appealed, and the court of appeals affirmed the trial court’s judgment. The parties disagreed on the amount Ortiz was to be paid, but the court of appeals held that a reasonable fact finder could have believed Ortiz’s testimony that Okunfulure failed to pay him $1250. The parties also gave conflicting testimony on whether Ortiz advised Okunfulure to build a foundation below the masonry wall to prevent deterioration, but the court of appeals again concluded that a reasonable fact finder could have believed Ortiz warned Okunfulure about the foundation. Thus, the court of appeals held that the evidence was legally sufficient to support the trial court’s judgment.
Okunfulure v. Ortiz, No. 05-12-01045
The court of appeals conditionally granted mandamus relief after the trial court appointed a receiver over relators and then expanded the powers of that receiver. The court of appeals found that the trial court’s orders were void as to relators because they were not served with process or otherwise notified of the receivership proceedings, which meant the trial court had no jurisdiction over relators.
In re C.D. Henderson Construction Servs., No. 05-13-00593-CV
Robison filed a medical malpractice suit against Texas Health Resources, Inc. d/b/a Texas Health Presbyterian Hospital Allen a/k/a Texas Health Allen (“THR”). However, Robinson was treated by Texas Health Presbyterian Hospital Allen (“THPHA”), and THR does not do business as THPHA nor did THR provide any of the care at issue in Robinson’s claim. The trial court granted summary judgment for THR, and dismissed Robison’s claims due to the misidentification. Robinson appealed, claiming that her original petition against “d/b/a [THPHA]” constituted an actual suit against THPHA. The court of appeals disagreed, finding that the “d/b/a” designation does not make the entity a party to the lawsuit. Further, nothing in the record showed that THPHA has been an assumed name for THR or vice-versa. Thus, the court of appeals affirmed the judgment of the trial court.
Robison v. Texas Health Resources, No. 05-11-01376-CV
Cambridge and Jain entered into an option program agreement. Cambridge later determined the investment programs managed by Jain were not economically feasible and told Jain it intended to terminate them. Jain demanded Cambridge pay certain fees allegedly due him, Cambridge refused, and Jain filed suit for breach of contract. The matter was arbitrated before a Financial Industry Regulatory Authority (FINRA) panel of arbitrators. The panel entered an award in favor of Jain, which the trial court confirmed. Cambridge appealed the judicial confirmation of the award. The court of appeals rejected Jain’s argument that Cambridge waived judicial review of the arbitration award by agreeing to arbitrate pursuant to FINRA rules. However, the court of appeals affirmed the trial court’s judgment because it found that the arbitrators did not exceed their powers by relying on impermissible matters outside the broad scope of the arbitration agreement.
Cambridge Legacy Group v. Jain, No. 05-12-00991-CV
Sullivan purchased a commercial cleaning franchise from Jani-King. The parties ended up in two disputes that were resolved through a single settlement agreement in 2004. The settlement agreement required Sullivan to “immediately and permanently cease operation” of his competing business, and Jani-King to offer Sullivan a certain amount of accounts within the next 12 months. The franchise agreement remained in full force and effect. In 2005, Jani-King sued Sullivan for breach of the franchise and settlement agreements, alleging that Sullivan continued to operate his competing business and failed to pay Jani-King royalty and advertising fees in compliance with the franchise agreement. The jury found in favor of Jani-King and Sullivan appealed.
Among other issues, Sullivan challenged the factual sufficiency of the jury’s findings. The court of appeals found that Sullivan’s factual sufficiency complaints were not preserved for review because Sullivan failed to file a motion for new trial. The court rejected Sullivan’s claim that his motion to disregard the jury’s findings or for judgment notwithstanding the verdict sufficed as a motion for new trial because those motions did not ask the trial court to vacate the judgment and order a new trial. The court of appeals also found that Jani-King’s failure to provide Sullivan with accounts was excused by Sullivan’s prior breach of the settlement agreement through his failure to immediately cease operation of his competing business. The court of appeals affirmed the trial court’s judgment.
Sullivan v. Jani-King of NY, Inc., No. 05-11-01546-CV
Parman sued TierOne to recover stock he allegedly owned in the company. The jury found that TierOne converted 4.5 million shares that belonged to Parman, and awarded him $600,000 in damages. TierOne appealed, arguing that the trial court erred by excluding evidence discovered after the trial began. TierOne received an audiotape after the second day of trial wherein Parman told another lawyer that “[No], man, I’ve got no stock [in TierOne], no nothing buddy.” TierOne produced the audiotape the next day, but the trial court denied TierOne’s motion to admit the tape.
Not surprisingly, the court of appeals determined that the trial court abused its discretion by refusing to admit the newly discovered audiotape of Parman admitting he doesn’t own any of the stock he was suing to recover from his employer. The court of appeals found that TierOne had good cause for failing to produce the audiotape before becoming aware that the lawyer who produced the tape had relevant information and becoming aware of the existence of the audiotape. The court also determined that TierOne supplemented its discovery responses reasonably promptly by producing the tape to Parman the day after TierOne received it. Finally, the court held that the trial court’s errors “probably caused the rendition of an improper judgment” because the audiotape likely would have impacted the weight the jury accorded Parman’s testimony. The court of appeals reversed the trial court’s judgment and remanded the case for further proceedings.
TierOne Converged Networks v. Parman, No. 05-12-00026-CV
Henning obtained a mortgage loan from Willow Bend Mortgage, which was later sold to IndyMac Mortgage Services, a division of OneWest Bank. IndyMac notified Henning that his loan was in serious default, and that failure to cure the default could result in foreclosure. Henning filed suit against OneWest, and OneWest filed a counterclaim for foreclosure. The trial court granted OneWest’s no evidence motion for summary judgment as to all of Henning’s claims, and OneWest’s summary judgment motion on its counterclaim. Among other issues, Henning alleges that the trial court erred by granting OneWest’s motion for summary judgment on its counterclaim for foreclosure.
The court of appeals rejected Henning’s claim that the assignment of the note and deed of trust from IndyMac to OneWest was invalid because it was signed by a “robo-signer,” ruling instead that the note was endorsed in blank and OneWest was in possession of the original note. Thus, there was no genuine issue of material fact respecting the “chain of title” on the note. The court of appeals also concluded that Henning failed to raise a genuine issue of material fact as to default. The court found no evidence in support of Henning’s claim that OneWest’s documents reflect confusion and misrepresentations regarding its claim of default. The court also rejected Henning’s claim that OneWest’s “loss mitigation obligations” precluded foreclosure because the record did not show that the note or deed of trust “expressly incorporated” any “loss mitigation obligations.” Thus, the court affirmed summary judgment for OneWest on its foreclosure counterclaim.
Henning v. Onewest Bank FSB, No. 05-12-00078-CV
Sauer obtained judgments in Pennsylvania and California against Valley Games, a foreign corporation. Sauer domesticated these judgments in the trial court, and filed suit against relator, Valley Games and others for fraudulent transfer and sought to pierce the corporate veil. Sauer obtained an ex parte order for a pre-judgment writ of attachment against relator, and an order requiring relator to deposit $260,000 into the court registry. The court of appeals conditionally granted a writ of mandamus as to both orders. The court found that it was error for the trial court to order the writ of attachment because Sauer’s claims were contingent and unliquidated. As the court noted, such writ “may be issued only when the demand is not contingent, is capable of ascertainment by the usual means of evidence, and does not rest in the discretion of the jury.” The order requiring relator to deposit money in the court’s registry was also error because it is a form of mandatory injunction, and Sauer had not proven that he was entitled to injunctive relief.
In Re Radiant Darkstar Productions, LLC, No. 05-13-00586-CV
In a commercial dispute concerning a furniture liquidation sale, the trial court awarded appellees damages for breach of contract and fraud, and attorney’s fees, but reduced the jury’s attorney’s fee award by nearly $425,000. Among other issues, appellants challenge the trial court’s $100,000 judgment against Lavercombe based on fraud, and appellees challenge the trial court’s reduction of attorney’s fees.
The court of appeals reversed the trial court’s judgment with respect to the fraud claim. The court found no evidence in the record showing that Lavercombe made a material misrepresentation as to the quantity and availability of upholstery products with an intent to deceive and with no intention of performing as represented. The court of appeals also reinstated the jury’s higher award of attorney’s fees because there was more than a scintilla of evidence in the record supporting the jury’s award. In all other respects, the court of appeals affirmed the trial court’s judgment.
Broyhill Furniture Indus. v. Murphy, No. 05-11-01545-CV
Big D appealed from the denial of its motion for new trial following a no-answer default judgment. The court of appeals found that the trial court properly refused to set aside the default judgment. Big D did not prove that its failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident. Rollins properly served Big D by substituted service on the secretary of state after seven failed attempts to serve Big D’s registered agent at the agent’s registered office and home. The substitute service on the secretary of state was not rendered void by the process being returned with the notation “Refused” because the secretary is not an agent for serving but for receiving process on the defendant’s behalf. Big D also failed to show that the evidence was insufficient to support the amount of damages awarded by the trial court. The court of appeals found that the car owner’s testimony regarding the “Blue Book” value of her vehicle was not so weak that the finding of damages was clearly wrong and unjust. Thus, the court of appeals affirmed the trial court’s judgment.
Big D Transmission v. Rollins, No. 05-11-01019
Van Voris was taking an aikido course at Chop Shop when he was injured during demonstration of a jiu-jitsu technique. Van Voris sued Chop Shop for negligence and gross negligence. Chop Shop moved for summary judgment based on its defense of pre-injury release from a one page “Release and Waiver of Liability and Indemnity Agreement.” Chop Shop argued that the waiver barred the negligence claims, and that the gross negligence claim was inseparable from the negligence claim.
The court of appeals found that the one-page release met the fair notice requirements for purposes of releasing Chop Shop from liability for its own negligence. The release was sufficiently conspicuous, and the language was specific and expressed the intent of exculpating Chop Shop. However, the court found that the waiver did not release the gross negligence claims and did not preclude proof of claims for negligence and actual damages. The court pointed to Texas’s strong public policy prohibiting pre-injury releases of negligence, heightened concerns involving gross negligence and exemplary damages, and the distinct elements for proving negligence and gross negligence. Thus, the court of appeals reversed the summary judgment against Van Voris regarding his gross negligence claims, and affirmed as to the negligence claims.
Van Voris v. Team Chop Shop, No. 05-11-01370-CV
UES sued Four D for failing to pay its invoices. In support of its motion for summary judgment, UES attached an affidavit that established the amount due. The trial court granted summary judgment in favor of UES, and Four D appealed. Four D argued that fact issues exist on the amount owed on the account. The court of appeals rejected UES’s argument that the affidavit could not support the summary judgment motion because it failed to meet the requirements of an interested witness affidavit. The court found that UES waived this argument because it failed to obtain a ruling on its objection. “Reasserting” the objection in UES’s motion for a new trial, which was subsequently overruled by operation of law, did not preserve the error. However, the court agreed with Four D that invoices attached to the affidavit that were stamped “PAID” raised a fact issue as to the amount owed. The court of appeals reversed and remanded.
Four D Construction v. Utility & Environmental Services, No. 05-12-00068-CV
ICON appealed the trial court’s order denying their post judgment motion to enforce a pretrial protective order. ICON sought to prevent the City of Lubbock from publicly disclosing an audit of ICON’s administration of the City’s health care plan. The court of appeals concluded that the trial court’s ruling was not subject to direct appeal; the ruling was not a final judgment or an appealable order under a statutory exception. The court rejected ICON’s attempt to characterize the order as a request for injunctive relief or an order relating to the unsealing of court records. The court determined that the proper procedural vehicle to challenge the ruling is to seek mandamus relief. In the interest of judicial economy, the court treated the appeal as a petition for writ of mandamus.
The court of appeals held that the trial court’s order permitting disclosure of the audit contradicted the plain meaning of its earlier protective order. The audit was created using and analyzing protected materials, and the protective order prohibited public disclosure not only of protected materials, but also any knowledge or intelligence taken from or received by those protected materials. Because the order denying ICON’s motion was a clear abuse of the trial court’s discretion, the court of appeals conditionally granted mandamus relief.
Icon Benefit Administrators v. Mullin, No. 05-11-00935-CV
Gardners appealed from a take-nothing judgment in a medical malpractice lawsuit against Children’s Medical Center. Gardners challenge the constitutionality of section 74.153 of the Texas Civil Practice and Remedies Code, arguing that the heightened standard of proof in cases involving emergency medical care in certain facilities violates the Equal Protection Clauses of the Texas and US Constitution. The statute created two categories of claimants: (1) those who received emergency medical care in certain settings and must meet a heightened standard of proof, and (2) those who receive emergency medical care in non-covered settings or receive non-emergency care and must only meet the traditional standard of proof. Gardners claim this classification is arbitrary, unreasonable, and not rationally related to a legitimate state interest.
The court of appeals held that the statute does not violate the Equal Protection clauses. According to the court, the lack of legislative facts explaining the basis for the statute’s classification has no significance in rational-basis analysis because legislative choices may be based on rational speculation unsupported by evidence or empirical data. The court also noted that the classification does not fail rational-basis review simply because in practice it results in some inequity. Instead, the statute must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. The court determined that the statute bears a rational relationship to the State’s legitimate interest in ensuring the provision and availability of emergency medical care to its citizens. Thus, Gardners’ sole issue on appeal was overruled, and the trial court’s judgment was affirmed.
Gardner v. Children’s Medical Center, No. 05-11-00758-CV
Among other issues, appellants argued that the trial court erred in the amounts awarded in pre-judgment interest and by denying a motion for recusal. The amount of pre-judgment interest could have been increased to include the time between when appellants submitted their proposed final judgment, which delineated the exact amount of prejudgment interest, and when that judgment was signed. However, the court of appeals found that appellants waived this argument by not excepting to the judgment or bringing the complaint to the trial court’s attention. The court affirmed the pre-judgment interest award, noting that the “invited error doctrine” precludes appellants from complaining when the trial court enters the appellants’ requested judgment. The court of appeals also affirmed the denial of appellants’ motion for recusal, finding that a single comment by the Judge, and the reversal and remand of the Judge’s prior judgment did not evidence bias.
David L. Assocs. v. Stealth Detection, Inc., No. 05-12-00073-CV
The court of appeals affirmed the trial court’s order granting CFC’s special appearance and dismissed NexBank’s claims against it. CFC negated personal jurisdiction by producing an affidavit, which alleged that CFC is a holding company that does not have business operations in Texas, does not own property or other assets in Texas, and does not maintain employees in Texas. NexBank’s evidence showed only that CFC’s subsidiaries may have had sufficient contact with Texas. But the court noted that it cannot exercise personal jurisdiction over a holding company based on the actions of its subsidiaries. NexBank also cited three unrelated cases as evidence that CFC sought relief in Texas courts. However, the court found that CFC defending itself in a lawsuit, failing to contest jurisdiction in two other suits, and filing a counter-claim in a third suit did not waive CFC’s right to contest jurisdiction in this matter. Thus, NexBank failed to establish that CFC has some minimum, purposeful contact with Texas.
NexBank, SSB v. Countrywide Fin. Corp., No. 05-12-00567-CV
AmeriPlan Corporation’s customers pay a monthly membership fee in order to access a network of healthcare professionals who have agreed to provide discounted medical services. Anderson worked as an independent contractor for AmeriPlan, and recruited its customers, healthcare professionals, and other independent contractors. AmeriPlan’s business model is based on multilevel direct marketing, and Anderson was compensated through commissions and bonuses. After AmeriPlan terminated his employment, Anderson sued AmeriPlan claiming that he was promised “lifetime residual income,” but did not receive any commissions or bonuses after his termination. The trial court rendered judgment for Anderson, and AmeriPlan appealed.
The issue on appeal was whether the evidence was legally sufficient to support the jury’s finding that AmeriPlan breached Anderson’s written sales contract. AmeriPlan argued that the contract unambiguously required it to pay commissions and bonuses only during the continuation of the contract. Anderson alleged that the jury was entitled to consider AmeriPlan’s promise of “lifetime vested benefits” contained in AmeriPlan’s marketing materials in deciding whether AmeriPlan breached the written contract. The court of appeals concluded that the parol evidence rule barred the jury from considering the statements made in AmeriPlan’s marketing materials because the alleged promises were not a collateral consistent agreement. The court also found that the fraud exception to the parol evidence rule was inapplicable because Anderson was not the defendant, and was not seeking to avoid the contract. Because the jury was precluded from giving weight to AmeriPlan’s alleged promises, the court of appeals held that the evidence was legally insufficient to support Anderson’s breach of contract claim. The court reversed and remanded to the trial court for consideration of the jury’s alternative liability and damages findings.
AmeriPlan Corp. v. Anderson, No. 05-11-00628-CV
Challenger Gaming Solutions made a loan to Mr. Earp. Shortly after the loan was made, the Earps settled an unrelated lawsuit for $1.1 million, with an initial payment to the Earps of $200,000. A few months later, Mr. Earp defaulted on his loan from Challenger, and the Earps divorced. Under the divorce decree, Mrs. Earp was awarded all the community assets, including the settlement proceeds, and Mr. Earp was ordered to assume all the couple’s debts. Challenger sued Mrs. Earp under the UFTA, contending that the transfer of settlement funds to Mrs. Earp constituted a fraudulent transfer. Mr. Earp was designated a responsible third party in Challenger’s suit. The jury found in favor of Challenger, but apportioned damages between the Earps. Challenger appealed.
The court of appeals held that the proportionate responsibility statute does not apply to UFTA claims because they do not lend themselves to a fault-allocation scheme. The focus of UFTA claims is to ensure the satisfaction of a creditor’s claim when the elements of a fraudulent transfer are proven. The UFTA allows recovery against the debtor, the transferee, or the person for whose benefit the transfer was made, but does not distinguish the forms of relief based on culpability. The court concluded that the proportionate responsibility statute conflicts with the liability scheme in the UFTA and cannot be reconciled. The court made Mrs. Earp liable for the entire award and affirmed the remainder of the trial court’s judgment.
Challenger Gaming Solutions, Inc. v. Earp, No. 05-11-01366-CV
The court conditionally granted a writ of mandamus preventing disclosure of a “Confidential Quality Review Occurrence Report” protected by the medical committee privilege. A visitor to the relator Hospital slipped and fell on Hospital premises, and sought damages in a premises liability suit. The visitor sought production of all incident reports made by the Hospital related to her fall. A two-page report titled “Occurrence Report Form” listed the visitor’s name and identifying information, the date and location of her fall, and a description of the occurrence and treatment provided; it was signed by a Hospital nurse. The report also stated “Confidential Quality Review Committee Document (NOT PART OF MEDICAL RECORD).” The Occurrence Reports are given to the Hospital’s quality review committee, which provides general governance for the Hospital’s quality of service. The court held that the Hospital met the standard for claiming medical committee privilege through its privilege log and a doctor’s affidavit because the Occurrence Report was not created in the regular course of business and was not part of a patient’s medical file. The court rejected the visitor’s argument that because this case involves a non-patient visitor, the medical committee privilege cannot apply. Instead, the court found that the medical committee privilege is not limited to evaluation of occurrences relating only to direct patient care.
In re Methodist Dallas Medical Center, No. 05-13-00134-CV
